SZJHE v Minister for Immigration
[2008] FMCA 1299
•19 September 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJHE v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1299 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal – allegation of bad faith not made out – Court cannot review Tribunal’s findings of fact – weight to be give to evidence is a matter solely for the Tribunal. |
| SBBS v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 194 ALR 749 |
| Applicant: | SZJHE |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 145 of 2008 |
| Judgment of: | Cameron FM |
| Hearing date: | 19 August 2008 |
| Date of Last Submission: | 19 August 2008 |
| Delivered at: | Sydney |
| Delivered on: | 19 September 2008 |
REPRESENTATION
| The Applicant appeared in person. |
| Counsel for the Respondents: | Ms A. Mitchelmore |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 145 of 2008
| SZJHE |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of India from where, he claims, he was supplying support to the Liberation Tigers of Tamil Eelam (“LTTE”) in Sri Lanka. He alleges that while in India he began sending medicinal goods and material for uniforms through a business contact in Colombo and that this subsequently to him being arrested, detained and assaulted. The applicant arrived in Australia on 14 February 2006.
The applicant claims to fear persecution in India because of his political activities.
After his arrival in Australia, the applicant lodged an application for a protection visa. This was refused by the Minister’s delegate on 15 May 2006. The applicant then applied to the Refugee Review Tribunal (“Tribunal”) for a review of that departmental decision. The applicant was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.
The Tribunal decision the subject of these proceedings is the second such decision relating to the applicant. There was a previous Tribunal decision signed on 31 July 2006 which was quashed by order of this Court on 17 July 2007.
For the reasons which follow, the application will be dismissed.
Background facts
The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4 – 11 of the Tribunal’s decision (Court Book (“CB”) pages 94 – 101).
In his protection visa application, the applicant made the following claims:
a)he donated money to many Sri Lankan Tamils who needed support and became friendly with a Sri Lankan Tamil businessman in Colombo from about March 2001;
b)in the middle of October 2005 his Sri Lankan business contact was arrested by the Sri Lankan police on suspicion that goods which the applicant had sent him might be intended for the LTTE;
c)the following day the Tamil Nadu police came to the applicant’s office at Chennai and searched files and documents in his office. The police asked the applicant’s secretary questions and took all his export files and copies of invoices. At that time the applicant had gone to visit his family;
d)the next day the Adirampattinam police came to the applicant’s home and questioned him about medicine and material for uniforms he had sent to the LTTE in Sri Lanka. He explained he was only exporting goods to Colombo as a businessman and had nothing to do with the LTTE. However, the police did not believe him and took him to the police station for further investigation;
e)while in police custody the applicant was beaten to force a confession that he had had contact with LTTE refugees from Sri Lanka. When the police could not find anything linking him with the LTTE they continued to assault him and later that night he was taken to a remand prison before being brought before a magistrate;
f)he refused to tell anything to the police and a few hours later a friend helped secure his release on bail. During the night he took all his family to his uncle’s house in Trichy to live there temporarily; and
g)the next day the police broke into his house, found his uncle’s address and informed the Trichy police who went to search for him. The police warned his uncle to send the applicant and his family away and threatened to charge his uncle with criminal offences. His uncle told him to get out of Adirampattinam and, because there is enough evidence for the police to charge him, he decided to leave the country.
At the Tribunal hearing on 18 October 2007 the applicant made the following additional claims:
a)he was arrested in about mid November 2005 at his family home. The police had gone to his business earlier that morning but he had not been there;
b)he was questioned at the police station by five policeman, two of whom hit him with a baton. He was hit across the legs, shoulders and back;
c)
as a result of the police assault he suffered internal injuries although he did not see a doctor until about three months later.
He was mentally disturbed and in pain and received medication and counselling but was not hospitalised. He said that a friend in India had prepared the statement for him in which he said he had been hospitalised but this was incorrect;
d)the applicant was not charged with an offence by the police, never went to court and was not brought before a magistrate. He was at the police station for about six hours and returned home that night. He stayed at his home in the village overnight and went alone to Trichy the next day; and
e)he stayed two days at his uncle’s home in Trichy and then went to Chennai. The police came to visit his uncle’s house while he was at the mosque.
The Tribunal’s decision and reasons
After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”). The Tribunal’s decision was based on the following findings and reasons:
a)the Tribunal did not find the applicant to be credible on some key aspects of his claims and concluded that he was not a reliable witness, noting that there were inconsistencies, contradictions and implausibilities in the applicant’s evidence in his protection visa application and his evidence before the first and secondly constituted Tribunals. The Tribunal noted that:
i)it was not persuaded by the applicant’s explanation that the inconsistencies concerning whether he was arrested in October or November 2005 arose because the very thought of the arrest unbalanced his mind and he “blabbered”;
ii)the applicant did not provide an explanation as to why he gave differing evidence concerning the circumstances surrounding his arrest;
iii)the applicant had explained the inconsistencies in his evidence concerning whether or not he was taken before a magistrate after his arrest by saying that he was presented to a person who was not a magistrate but who was pretending to be a magistrate in a “drama played by the cops”. The Tribunal found this explanation to be unconvincing;
iv)the applicant explained the inconsistencies between his initial evidence, that he took his family to live in Trichy, and his later evidence that he travelled alone to Trichy, by saying that he went there alone and his family followed him later. The Tribunal did not find this convincing;
v)the applicant claimed he is on the ‘wanted list’ in India, however, was able to depart India using his own passport, indicating that he is not of adverse interest to the Indian authorities;
vi)although the applicant’s visa to travel to Australia was granted on 15 December 2005 he did not arrive in Australia until 14 February 2006; and
vii)the applicant gave differing accounts concerning medical assistance for injuries allegedly sustained while in police detention. The Tribunal did not accept the applicant’s explanations and was not satisfied that the applicant had been assaulted by police or had received medical assistance in this connection; and
b)in light of this the Tribunal was not satisfied the applicant was arrested, detained and assaulted on suspicion of being an LTTE supporter or is of adverse interest to Indian authorities.
Proceedings in this Court
The grounds of the amended application were pleaded as follows:
(1)The Refugee Review Tribunal failed to establish a connection between my claim of persecution and the country information about the LTTE under the Migration Act
(2) The Refugee Review Tribunal made the decision in bad faith
(3)The decision of the Refugee Review Tribunal did not give any weight to the response that I lodged under s424A of the Migration Act.
Dealing with each of these grounds in turn:
Failure to connect claim with the evidence
The applicant particularised this allegation in the following terms:
The Tribunal failed to establish a connection between my claim of persecution and the country information about the LTTE under the Migration Act that:
i)the authority of India treated the LTTE as a terrorist organization and the members and supporters of this organization are the enemy of the nation. They were in the government’s wanted list.
In his written submissions the applicant submitted that the Tribunal had not believed that he had been arrested, detained and assaulted on suspicion of being an LTTE supporter. He also submitted that the Tribunal had failed to realise that India treats the LTTE as a terrorist organisation. The applicant continued:
I submit before this Honourable Court that my claims and the country information indicated the same that the Indian authority treats the LTTE is [sic] terrorist organization. However the Tribunal failed to establish a connection between my claim and the country information. Accordingly the Tribunal did not make a favourable decision for me in this matter.
The applicant cannot succeed in this allegation. The status of the LTTE and its classification by the Indian government as a terrorist organisation is of no significance in these proceedings if the Tribunal did not accept that the applicant had come to the adverse attention of the Indian authorities by reason of his association with it. Although the Tribunal made no findings on the applicant’s allegations that he provided medicine and materials to a businessman in Colombo, it disbelieved his claims to have been arrested and assaulted by police. This being so, the Tribunal had no cause to consider whether the treatment which the applicant alleged he had suffered at the hands of the Indian police was related to his claimed support for the LTTE. As a result, the first pleaded ground discloses no jurisdictional error on the part of the Tribunal.
Decision made in bad faith
The applicant particularised this allegation in the following terms:
The Tribunal made the decision in bad faith by making the following comment that:
i)the Tribunal did not find the applicant to be credible on some key aspects of his claims; and
ii)the Tribunal did not accept that the applicant was of adverse interest to the Indian authorities.
The Full Court of the Federal Court said in SBBS v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 194 ALR 749 at 756 [43] to [46]:
· An allegation of bad faith is a serious matter involving personal fault on the part of the decision-maker.
· The allegation is not to be lightly made and must be clearly alleged and proved.
· The presence or absence of honesty will often be crucial.
· The circumstances in which the court will find an administrative decision-maker had not acted in good faith are rare and extreme. This is especially so where all that the applicant relies upon is the written reasons for the decision under review.
· Mere error or irrationality does not of itself demonstrate lack of good faith. Bad faith is not to be found simply because of poor decision-making. It is a large step to jump from a decision involving errors of fact and law to a finding that the decision-maker did not undertake its task in a way which involves personal criticism.
· Errors of fact or law and illogicality will not demonstrate bad faith in the absence of other circumstances which show capriciousness.
The matters to which the applicant refers in his written submissions do not satisfy the criteria or address the issues set out in SBBS’s case and, in reality, amount only to a complaint about the Tribunal’s findings of fact. These the Court cannot review.
The applicant submitted that the Tribunal made up its mind to refuse him without considering his claim and yet its decision record, which is the only evidence on the question, discloses quite the contrary. It sets out the applicant’s claims, both in their substance and in their detail. The decision record also reveals that the Tribunal conducted a hearing on 18 October 2007 at which the applicant was given the opportunity to give the evidence and make the submissions which he wished the Tribunal to have. There is nothing in the Tribunal’s decision record which suggests that it approached its consideration of the applicant’s situation with a pre-formed view and that it did no more than go through the motions of a review.
The applicant has pointed to no particular aspect of the Tribunal’s conduct, other than the fact that it found against him, as support for his allegation. In those circumstances, the second ground pleaded in the amended application is not made out.
Tribunal gave no weight to s.424A(1) response
The applicant particularised this allegation as follows:
The Tribunal asked me to provide a response for couples of things and I promptly response of those things that the Tribunal came into my attention. However the Tribunal did not give any weight to those documents and just came into conclusion whatever had to its mind.
In his written submissions, the applicant noted the Tribunal’s request for information and his reply saying:
I submit that if the Tribunal’s was strict to my previous evidences then why the Tribunal issued me a notice under s424A of the Migration Act. If the Tribunal issued a notice then why the Tribunal did not put any weight to the response.
The weight which the Tribunal accords to the evidence before it is a matter solely for it. The task of making findings of fact, based on conclusions as to the evidence, including the weight which is to be given to particular evidence, is a matter for the Tribunal. Absent matters such as demonstrated bad faith, which has already been considered but dismissed in the context of this application, the decision the Tribunal makes as to the weight to be accorded to particular evidence is a matter solely for it and cannot be reviewed in these judicial review proceedings. For this reason, the third ground pleaded in the amended application is not made out.
Conclusion
Jurisdictional error on the part of the Tribunal has not been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 19 September 2008
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